October 2005

10/31/2005

The reference is to SCOTUS nominee Sam
Alito's decision in the Casey decision, in which he would have upheld
Pennsylvania's srtatute requiring spousal notification before an
abortion may be performed. The answer, of course, is that such a
requirement is not an extreme view in American society. To the
contrary, as Jim Lindgren demonstrated today, a
majority of Americans supported spousal notification laws. Of course,
calling a majority position "extreme" is classic
paternalistic liberal doublespeak. Using constitutional inkblots and
extra-constitutional penumbras to invalidate laws supported by such
majorities is, at best, judicial legislating.

One of my (many) objections to Harriet Miers' nomination to the
Supreme Court was my belief that Bush was ducking a fight with the
Democrats that the time had come to wage:

... we'll never again have as good a
chance as we do right now to fight and win the battle to, as Henninger
put it, "confirm someone who had participated in this conservative
legal reconstruction and who would describe its tenets in a
confirmation hearing," so that that "vote would stand as an
institutional validation of those ideas. This would become a
conservatism worth aspiring to." Indeed.

This is a fight we can afford. It's the right fight. Those
of us who oppose Miers need to keep on fighting. (
Link)

It looks like the Democrats will
accomodate us. Charles Schumer, for example, proved once again that the
most dangerous thing one can do in Washington is to stand between
Schumer and a microphone. Indeed, Alito prompted the
very worst in Schumer:

Like Rosa Parks, Judge Alito will be able to
change history by virtue of where he sits. The real question today is
whether Judge Alito would use his seat on the bench, just as Rosa Parks
used her seat on the bus, to change history for the better or whether
he would use that seat to reverse much of what Rosa Parks and so many
others fought so hard and for so long to put in place.

In other words, Schumer wants you to
believe that Alito will send Rosa Parks back to the back of the bus
(presumably after exhuming her). And then Schumer has the gall to call
Alito extreme and divisive! Of course, Schumer does have expertise in
spotting an extreme and divisive individual, since he sees one in the
mirror every morning.

President Bush has nominated 3rd Circuit judge Samuel Alito to replace Sandra Day O'Connor on the Supreme Court. I think it's a great choice. Alito is everything Harriet Miers was not: An experienced jurist. Prosecutorial and government experience. Relatively young (55). Stellar educational credentials (Princeton and Yale). A committed conservative whose track record earned him the nickname Scalito. (Wikipedia has details on some of his decisions.)

... it’s important we get a judge who will decide business cases with some sensitivity to the value of free markets and the problems firms face from litigation and regulation.

Based on a quick check Alito is such a judge. Although he may not be the nominee, I think it’s worth briefly discussing some of Alito’s opinions, at least to indicate what a business-friendly justice might look like. ...

[Analysis of cases omitted]

... Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs. He's also obviously aware of the problems that can be caused by lax proof standards and open-ended liability.

Alito isn’t my first choice. In a perfect world I would have Frank Easterbrook or Edith Jones. But, unlike Miers, he actually has a long record on these issues and not just tea leaves, and the record is a good one. ...

Altio wasn't my first choice either (Mike McConnell was). But this is a solid pick that should unite the base behind it.

Update: One of my (many) objections to Harriet Miers' nomination to the Supreme Court was my belief that Bush was ducking a fight with the Democrats that the time had come to wage:

... we'll never again have as good a chance as we do right now to fight and win the battle to, as Henninger put it, "confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing," so that that "vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to." Indeed.

This is a fight we can afford. It's the right fight. Those of us who oppose Miers need to keep on fighting. (Link)

It looks like the Democrats will accomodate us. Charles Schumer, for example, proved once again that the most dangerous thing one can do in Washington is to stand between Schumer and a microphone. Indeed, Alito prompted the very worst in Schumer:

Like Rosa Parks, Judge Alito will be able to change history by virtue of where he sits. The real question today is whether Judge Alito would use his seat on the bench, just as Rosa Parks used her seat on the bus, to change history for the better or whether he would use that seat to reverse much of what Rosa Parks and so many others fought so hard and for so long to put in place.

In other words, Schumer wants you to believe that Alito will send Rosa Parks back to the back of the bus (presumably after exhuming her). And then Schumer has the gall to call Alito extreme and divisive! Of course, Schumer does have expertise in spotting an extreme and divisive individual, since he sees one in the mirror every morning.

So: Let's get ready to rumble!

How do we fight this battle (asks Patterico)? I've speculated before that one might appropriate model the nomination process as a chicken game:

Two hooligans with something to prove drive at each other on a narrow road. The first to swerve loses faces among his peers. If neither swerves, however, a terminal fate plagues both.

How do you win a chicken game? If I am one of the drivers, I need to convince the other driver that I am not going to swerve. In his book The Strategy of Conflict, Thomas Schelling suggests a precommitment strategy: i.e., "power through binding oneself." In order to convince the other driver that I will not swerve, I need to use a precommitment device. What then do I do? The classic answer is that I make a big deal out of visibly throwing my steering wheel out the window. It sends the following signal to the other driver: "I'm going to win at all costs. I can no longer swerve. So if you want to live, you have to be the one to swerve. What's it going to be? You have the last clear chance."

If I'm right that the chicken game is a useful model for the nomination impasse, the task ... is to figure out the equivalent of throwing the steering wheel out the window.

I support the right of Senators to filibuster judicial nominations, albeit while believing it should be limited to rare and exceptional cases. I supported the filibuster deal largely because it limited the filibuster to such cases.

The so-called Gang of 14 should conclude that Judge Alito's nomination is not the exceptional case that would justify a filibuster. He is staunchly conservative, but is clearly in the Scalia and Thomas mold, and as such is well within the mainstream of modern legal thought. To filibuster Alito is to say you would have filibustered Scalia and Thomas.

What if the Democrats in the Gang of 14 go wobbly on the deal? At that point, they've started a chicken game. In response, the GOP members of the Gang of 14 should throw the steering wheel out the window by committing in writing to voting to support the elimination of the filibuster. My guess is that the Dem Gang of 14ers will then cave, thereby preserving the filibuster while also confirming Alito, which is my personal win-win scenario.

In sum, the nuclear option of repealing the filibuster is kind of like nuclear weapons. It's a deterrent that should never be used. Indeed, one could say the same thing about the filibuster itself.

10/30/2005

My friend U Penn bankruptcy law scholar David Skeel has a skeptical
article in the latest Legal
Affairs on hedge funds. Money quote:

Hedge fund misbehavior looks ominously
like the edge of the next wave of financial scandals. While many top
executives of Enron and WorldCom?and the investment bankers and
accountants who advised them?have been punished or soon will be, the
scandals they perpetrated never prompted a thorough rethinking of how
American markets should work, and how best to preserve the markets'
integrity. After 25 years of deregulation in financial, airline, and
other industries, a high-velocity, service-oriented economy has given
the wealthiest Americans more money than ever. They are pouring it into
hedge funds, whose whiz-kid managers are guided by an overriding
principle: Multiply the money, any way you can.

Hugh Hewitt: The center of the Miers opposition was National
Review's blog, The Corner, and another blog, ConfirmThem.com, both with
sharp-tongued, witty and relentless writers. {Prof. B: Hey! What am
I? Chopped liver?} They unleashed every argument they could find,
and the pack that followed them could not be stopped. Even if a senator
had a mind to urge hearings and a vote, he had to feel that it would
call down on him the verbal wrath of the anti-Miers
zealots.

Tempting as it is to indulge in a
bout of blogosphere triumphalism, I have to remind Hugh that not so
many days ago he was dismissing "the verbal wrath of anti-
Miers zealots" as essentially toothless:

The upside of voting against Miers for a senator
is so limited as to be almost non-existent in the real world of
politics. The promises of glorious battles with the Dems and the break-
up of the Gang of 14 means to them shattering their comfortable worlds
and opening themselves up again to the enormous pressures that built
throughout the spring. To those who, like Senators Graham and DeWine,
took the most heat for the Gang of 14 deal, or like Senators Chafee and
Snowe, facing re-election with restive conservative bases, or even
stalwart Jon Kyl, facing a deep pockets opponent in Arizona, smashing
up the president nominee just doesn't figure to be a good move. Try
explaining to the Arizona Pro-life Network why Miers wasn't good
enough.

Or they can risk the wrath of the Cato Institute and the
"not one of us" caucus. ... You don't get elected to the
Senate by banking on the loyalty and support of opinion makers who are
in the process of displaying their willingness to turn on a dime and
compare the president's nominee to Caligula's horse.

Did Hugh underestimate the power of the blogosphere? Or was
something else going on?

In fact, if I had to guess based on what I've seen in the
press and heard through the grapevine, I'd say that Miers quit because
the Senate GOP caucus had sent the message that she was unconfirmable
due to a combination of lack of qualifications and uncertain
conservative credentials. The word on the street is that Miers bombed
in interviews with Senators and that she wasn't cutting it in her
murder boards. Toss in public displays of questionable skills, such as
those abysmmal 1993 speeches or the inadequate Senate Judiciary
Committee questionnaire. Add to that set of problems the growing
questions about her conservative credentials, which led
evangelical/social conservatives in groups like Concerned Women for
America to come out against Miers, and you've got problems way beyond
anything the blogosphere could drum up.

In sum, it is specious to blame the blogosphere for the
quagMier. There is only one person who is to blame for this debacle.
His name is George W. Bush.

10/28/2005

Where the contract between a corporation and one of its creditors is silent on some question, should the law invoke fiduciary duties or other extra-contractual rights as a gap filler? In general, the law has declined to do so. There is some precedent, however, for the proposition that directors of a corporation owe fiduciary duties to bondholders and other creditors once the firm is in the vicinity of insolvency.

Courts embracing the zone of insolvency doctrine have characterized the duties of directors as running to the corporate entity rather than any individual constituency. This approach is incoherent in practice and unsupportable in theory. Courts should focus on whether the board has an obligation to give sole concern to the interests of a specific constituency of the corporation. The leading argument for imposing a duty on the board running to creditors when the corporation is in the vicinity of insolvency is the claim that shareholders will gamble with the creditor' money.

This Article demonstrates that this argument is unpersuasive. It is director and manager opportunism, rather than strategic behavior by shareholders that is the real concern. Because bondholders and other creditors are better able to protect themselves against that risk than are creditors, there is no justification for imposing such a duty. This article also argues that the zone debate is much ado about very little. The only cases in which the zone of insolvency debate matters are those to which the business judgment rule does not apply, shareholder and creditor interests conflict, and a recovery could go to directly to those who have standing to sue. In those cases, as this Article explains, there is a strong policy argument that creditors should be limited to whatever rights the contract provides or might be inferred from the implied covenant of good faith.

10/27/2005

The Miers nomination battle was a fight between friends and allies.
I come out of it relived with the result, but sorry that we had to go
through this internicine battle. For my part, it was always business,
not personal. It was a matter of principle. And of sending President
Bush a message of cumulative dissatisfaction with the sorts of issues
discussed in the next post down.

The good news is that nobody has to take the ride Tessio took. So
I'd like to send a shout out to friends like Hugh Hewitt and Beldar for
having fought honorably in a cause in which I know they sincerely
believed. Here's hoping we'll be on the same side of the next
round.

I'm stuck in dial-up country for the next couple of days. In order
to make sure the beast was fed, I did save up some posts for you using
time delay date stamping, but new material will have to be pretty bare
bones.

Two thoughts on Harriet Miers' withdrawal. First, in too many
respects, President Bush has not governed as a conservative. Sarbanes-
Oxley. McCain-Feingold. Iraq. Spending. You name it. The Miers
nomination was, for many of us in the conservative movement, the straw
that broke the camel's back. At this point, the onus is on the
President to repair his relationship with the base, not the other way
around. It may be, as some have argued, that we conservatives bought a
pig in a poke back in 2000 and should have known it. And, perhaps, some
of us were so desperate to win after 8 years of Clinton that we decided
to overlook questionmarks. But if the polling data tells us anything,
it is that the base is all the support Bush has left. He needs us at
this point more than we need him and this episode proves it.

...
we'll never again have as good a chance as we do right now to fight and
win the battle to, as Henninger put it, "confirm someone who had
participated in this conservative legal reconstruction and who would
describe its tenets in a confirmation hearing," so that that
"vote would stand as an institutional validation of those ideas.
This would become a conservatism worth aspiring
to."

If the President wants to win
folks like me back, this is the fight he must lead. I'm not even saying
he has to win, although I am confident he will if he puts his mind to
it, I'm just saying he has to try. The Miers withdrawal gives him the
chance for a do over. I trust he will seize the opportunity.

[Milton] Friedman has qualified his social responsibility claim for force and fraud, but what about negative externalities more generally (just ponder Tamiflu licensing if you want the appropriate headache)?

I am sitting in the departure lounge at LAX waiting for a flight, blogging from my Treo. But I just had to post on Mier's withdrawal. First, congrats to Charles Krauthammer, who correctly forecast the solution - i.e., a refusal by Bush to release documents. Second, let's hope Bush now nominates someone the entire base can support. Mike McConnell comes to mind.

I'll post more tonight, if I can get internet access (the place I'm staying doesn't even have touchtone phones!)

Update: A reader emails:

Great blogging on Miers and history will judge you well
and judge you correct. Thanks for your strong stand and thanks for your work for
the conservative movement.

Thanks!

Update: Two thoughts on Harriet Miers' withdrawal. First, in too many respects, President Bush has not governed as a conservative. Sarbanes-Oxley. McCain-Feingold. Iraq. Spending. You name it. The Miers nomination was, for many of us in the conservative movement, the straw that broke the camel's back. At this point, the onus is on the President to repair his relationship with the base, not the other way around. It may be, as some have argued, that we conservatives bought a pig in a poke back in 2000 and should have known it. And, perhaps, some of us were so desperate to win after 8 years of Clinton that we decided to overlook questionmarks. But if the polling data tells us anything, it is that the base is all the support Bush has left. He needs us at this point more than we need him and this episode proves it.

... we'll never again have as good a chance as we do right now to fight and win the battle to, as Henninger put it, "confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing," so that that "vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to."

If the President wants to win folks like me back, this is the fight he must lead. I'm not even saying he has to win, although I am confident he will if he puts his mind to it, I'm just saying he has to try. The Miers withdrawal gives him the chance for a do over. I trust he will seize the opportunity.

Update: The Miers nomination battle was a fight between friends and allies. I come out of it relived with the result, but sorry that we had to go through this internicine battle. For my part, it was always business, not personal. It was a matter of principle. And of sending President Bush a message of cumulative dissatisfaction with the sorts of issues discussed in the next post down.

The good news is that nobody has to take the ride Tessio took. So I'd like to send a shout out to friends like Hugh Hewitt and Beldar for having fought honorably in a cause in which I know they sincerely believed. Here's hoping we'll be on the same side of the next round.

10/26/2005

Hugh Hewitt is devoting today's show to the political consequences
of a withdrawal or defeat of Harriet Miers. Earlier Hugh blogged:

Getting this vote wrong will be disastrous
for the GOP, with possible consequences including Patrick Leahy
returning to the chair of the Judiciary Committee for starters. Michael
Barone was right to call it a 51-49 or 51-48 nation after last year's
election. That crucial margin can be lost. In such a situation, the GOP
cannot send even 3% of its supporters to the
sidelines.

Homework assignment: My
reader's poll has been steady at 71% against the Miers nomination
(go
vote now), which oddly enough is almost exactly the same margin as
in TTLB's blogger
poll. Go find some polling data on how many self-identified
Republicans regularly read blogs. Multiply that number by 71%. If the
product is > 3% of the GOP base, my friend Hugh has a problem.

The difference between conservative legal elites' support for Justice Thomas and their split over Miers is that Justice Thomas was indeed "one of us" in their eyes, meaning one of the Capitol's regulars at roundtables and seminars and receptions prior to his elevation to the D.C. Circuit. Justice Thomas had many personal friends who went to the mat for him against the onslaught in 1991.

Miers has been in D.C. for nearly five years, but is clearly not a "joiner," and has clearly been working very long hours at the White House. The "not one of us" argument is the most candid admission yet of one the most powerful motives at work in the anti-Miers camp. This is not to say that critics of Miers aren't sincere. They are. But Pilon's admission against interest may explain the ferociousness of the assault from normally reserved and jovial academics. When Bacchus takes up the dagger, something strange is going on.

Yep, the Bacchus reference is to your truly. So I can say with some confidence that I think he's wrong here.

"It's not personal, Sonny. It's strictly business."

When Roger Pilon said Harriet Miers is not "one of us," he wasn't referring to social sets or receptions or what-have-you. He was referring to philosophy and principle. He was referring to Miers being AWOL in the conservative legal revolution of the last 25 years. She simply has not been down in the trenches with the troops fighting that battle. (Update: Amy Ridenour has what we lawyers call evidence of trade usage with respect to the meaning of the "one of us" phrase.)

In other words, I understand the root of Pilon's objection to be the widely-shared disbelief that Harriet Miers is a principled conservative jurisprude with a deep grounding in a well thought out judicial philosophy. In other words, she was not what President Bush promised us - i.e., a judge in the Scalia/Thomas mold. I've demonstrated that Bush promised us such a judge.

At best, however, Bush gave us a stealth candidate we can't assess. On the evidence available, moreover, he broke his promise. As I said a while back:

American conservatism is in crisis at the moment because the bizarre Harriet Miers nomination imposed a surreality check on the right, forcing us to consider just how much nonsense we had gone along with for the sake of party discipline.

Where to start? With the LBJ-level spending? The signing of the McCain-Feingold campaign finance bill, which candidate Bush had denounced as unconstitutional? The race-preferences sellout in the University of Michigan cases?

There was also the cynical use of the federal marriage amendment, which the administration dropped after turning out the social conservative vote in 2004. And grass-roots conservatives cite the president's intent to liberalize immigration policy with Mexico.

Then there is the Iraq quagmire, which, even if initially a worthy cause, has become a rolling disaster. On top of this came the Katrina debacle, which further damaged conservatism's claim to competent governance.

Conservatives, consciously or not, looked the other way for far too long, mostly because we felt it important to back the president in wartime and because nothing was more important to the various tribes of Red State Nation than recapturing the Supreme Court. For the first time in a generation, a conservative Republican president and a Republican majority in the Senate made that dream a real possibility. Whatever else Mr. Bush might fumble, we trusted him to get that right.

Instead, he gave us a crony pick of no extraordinary constitutional expertise or discernible vision, except for love of Our Lord and George W. Bush, and support for racial preferences. This is what we drank the Rovian Kool-Aid for? The Miers selection was no isolated incident, but the tipping point in a series of betrayals.

I'd like to welcome Rod to the club, since he's echoing precisely the sentiments I posted back all the way back on October 4th and 5th, not to mention yesterday.

When the White House puts up a stealth candidate, it can't complain
when people start parsing what little evidence we have about the
candidate's views. The blogosphere is paying a lot of attention today
to a speech SCOTUS nominee
Harriet Miers gave back in 1993. Over at the NRO Corner, Rich Lowry and Ramesh Ponnuru squared off on the question of
whether Miers endorsed judicial activism in that speech. I think
Ponnuru has much the better of the argument:

You could adopt the argument that
legislatures are to blame for not reining in the courts (an argument
which I think is generally sound). You could go on to note that
legislatures have not sought to reclaim their powers because they are
perfectly happy to see the courts get the blame for tough decisions.
[ProfB: Which is exactly right in my view.]

The ongoing debate continues surrounding the attempt to once
again criminalize abortions or to once and for all guarantee the
freedom of the individual women's right to decide for herself whether
she will have an abortion.

Jo Becker in the Washington Postreports on a
1993 speech by Harriet Miers in which the Supreme Court nominee argued
that the concept of "self-determination" should guide
judicial decisions about abortion and other values issues. This sounds
very much like the reasoning that led Anthony Kennedy to reaffirm the
Roe v. Wade precedent in his decision in Casey v. Planned
Parenthood the previous year, 1992:

"At the heart of liberty is the right
to define one's own concept of existence, of meaning, of the universe,
and of the mystery of human life."

The
badly muddled thinking in the speech that Miers
delivered in 1993 (and that the Washington Post reported on today) is
only the latest in a mounting pile of evidence that makes it
implausible to hold out hope any longer that Miers will prove to be a
sound judicial conservative. I don?t see how anything she says at her
hearing ? or anything else that realistically emerges between now and
then ? can offset this evidence.

Harriet Miers has earned the president?s trust and deserves our
respect, and it is lamentable that some folks, in their deep
disappointment at her nomination, have been excessive in their
criticisms of her. But I see no reason why anyone concerned about the
problem of judicial usurpation of the political processes should trust
that a Justice Miers would be part of the solution.

As part of a
third White House strategy to prop up the Supreme Court nomination of
Harriet Miers, President George Bush announced today that Miss Miers is
not "intellectually burdened" with detailed knowledge of the opinions of legal scholars
regarding the Constitution.

"Justice Harriet Miers will read the Constitution like I
would," said the president. "I want someone who has a fresh perspective on the actual words of the
document, rather than on what Chief Justice Earl Warren Burger wrote in
1812."